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Updated Aug. 12 11:46 a.m. Chris Brennan took the stand Friday morning and did not disclose the source of his 2014 article about Mondesire.
Kathleen Kane’s guilt or innocence on charges of perjury and obstruction could come down to the testimony of an unusual witness: a journalist.
The case involving Pennsylvania’s attorney general involves two newspaper reports. Prosecutors say an article published by the Inquirer about a sting investigation dropped by her office led her to seek revenge against Frank Fina, a former employee of the AG’s office. To do so, prosecutors say Kane and two staffers leaked a story to the Daily News, specifically to reporter Chris Brennan.
Brennan’s name was on the list of potential witnesses. He could speak sometime this week. And, besides former employees Adrian King and Josh Morrow, which Kane’s defense is trying to paint as serial liars, Brennan could be the only one who has any idea whether Kane was responsible for the leak.
Now, there’s a good chance Brennan won’t say anything about who tipped him off about the story. Journalists rarely discuss anonymous sources, even when the law gets involved, and will go to prison before disclosing a confidential source. The Pennsylvania Shield Law protects journalists from being forced to disclose confidential sources.
Brennan did not respond to an interview request, but Pepper-Hamilton attorney Mike Schwartz contacted Billy Penn on behalf of Brennan and the Inquirer, which now employs Brennan. Schwartz declined to comment, saying, “It would be inappropriate for him to comment prior to his testimony.”
The catch for the Pennsylvania Shield Law is whether the confidential information has already been disclosed. Here’s how the Pennsylvania NewsMedia Association puts it:
“The journalist cannot divulge confidential information without either permission from the source of the information or from an order from a court. If information is published or otherwise disclosed to the public (such as by word of mouth), the information loses its confidential nature and the journalist may be compelled to testify about what was published.”
Because of that exception, Brennan could be compelled to testify by the court. Morrow, a former Kane consultant, has talked pretty openly with investigators. He was granted immunity, likely in exchange for his cooperation, and has essentially admitted to being the person who provided Brennan with the confidential documents.
In an interview with Montgomery County detectives last summer, Morrow told Det. Paul Bradbury he had a conversation with Kane after he testified before a grand jury, saying: “We talked about them wanting me to give them permission for Chris Brennan to drop the shield law.”
Morrow also spoke casually with Bradbury about how he knew little about the confidential nature of the documents he was given — only that they were related to Fina and Mondesire and it was his job to get them to a reporter. He discussed picking up the documents at King’s house and then redacting them himself “because I wanted to ensure that the story was written about Frank Fina and Marc Costanzo.”
On top of that, The (Allentown) Morning Call published a story in February reporting Morrow was caught on an unrelated FBI wiretap talking about how Kane wanted him to pass along the confidential grand jury information to a reporter.
Melissa Melewsky, media law counsel with the Pennsylvania NewsMedia Association, said even if the name of a confidential source has been published by another news organization, a journalist can claim Shield Law and can’t be compelled to confirm or deny that report if they made a promise of confidentiality.
She also said that under the Shield Law, a journalist can’t be compelled to divulge any details surrounding the circumstances of a confidential source if those details could be used to identify who the source is.
What’s unclear is what a reporter can and can’t be compelled to do if a source gives the reporter permission to waive the Shield Law. It’s possible a journalist could still keep quiet.
“That would depend on the journalist and the news organization,” Melewsky said. “They may not want to set a precedent for other confidential sources.”